What's Mine Is Mine

By
Roscich & Martell Law Firm, LLC
|January 25, 2016

Almost no contract is completely ironclad; there is nearly always at least
one loophole that can be located and exploited. Although Illinois family
law follows this general rule, most judges will enforce
premarital agreements, absent extraordinary circumstances.

The existing tendency to enforce these contracts became even more pronounced
in 1990, when Illinois adopted the Uniform Premarital Agreement Act. In
so doing, the Legislature eliminated a common-law requirement that the
agreement be “fair and reasonable.” Now, it is much more difficult,
though certainly not impossible, to overturn a premarital agreement.

Was The Agreement Involuntary?

To overturn part of an agreement, the challenging party must prove that
it was not voluntary or unconscionable when made. If the challenge is
successful, the offending portion of the agreement will be removed and
the remainder will stand. Partial invalidity does not invalidate the entire document.

In terms of voluntariness, the bar is set very high. In most cases, there
must be a level of coercion that borders on the use of physical force;
even something like a sign-or-else ultimatum is insufficient. Some states,
including California, set out a list of factors to consider in this area.
But in Illinois, the matter is almost entirely discretionary.

Was The Agreement Unconscionable When Made?

“Unconscionable” is not defined in the law; a plain meaning
of the word is something that shocks the conscience; for example, a 60-40
split is uneven but clearly not unconscionable. To win an unconscionability
argument, the challenging party must also prove:

No Disclosure: The drafting party must have either provided no financial
disclosure whatsoever or provided one that intentionally omitted key assets.
If the challenging party waives disclosure, that act must be in writing.

Inadequate Knowledge: In addition to an actual lack of knowledge about
marital assets, the challenging spouses must generally prove that they
would have been unable to attain such knowledge.

So, to overturn a premarital agreement based on unconscionability, the
division must be manifestly unfair and the challenging spouse must have
had little or no idea about what he or she was signing.

It is difficult, but not impossible, to overturn a premarital agreement
in Illinois. For a confidential consultation, contact an experienced
Naperville family law attorney. After hours appointments are available.

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